Information Note on the Court’s case-law 242

July 2020

D v. France - 11288/18

Judgment 16.7.2020 [Section V]

Article 8

Article 8-1

Respect for private life

Obligation for children born under surrogacy arrangement to be adopted in order to ensure recognition of legal mother-child relationship: no violation

Article 14

Discrimination

Obligation for children born under surrogacy arrangement to be adopted in order to ensure recognition of legal mother-child relationship: no violation

Facts – The applicants are an opposite-sex married couple and their daughter, who was born in Ukraine in 2012 through a gestational surrogacy arrangement. In 2017 the Court of Appeal u pheld the public prosecutor’s refusal to enter in the French register of births, marriages and deaths the full details of the Ukrainian birth certificate, which named the first two applicants as the mother and father without any mention of the woman who ha d given birth to the child. Only the legal father-child relationship was recorded. With regard to the mother-child relationship, the Court of Appeal held that the first applicant could have recourse to adoption.

Law

Article 8: The refusal of the request for the details of the foreign birth certificate to be entered in the French register of births in so far as the certificate named the first applicant as the child’s mother amounted to interference with the child’s rig ht to respect for her private life (see the previous French cases concerning the same subject). The interference had been in accordance with the law, and the Court had previously accepted that it could be regarded as pursuing a legitimate aim.

As gestatio nal surrogacy was not permitted under French law, the issue of the civil status of children born abroad following that procedure had already given rise to several cases (notably since the case of Mennesson v. France , 65192/11, 26 June 2014, Information Note 175 ), and subsequently to an advisory opinion issued at the request of the French Court of Cassation (P16-2018-001, 10 April 2019, Information Note 228 ).

According to this case-law, where a child was born abroad through surrogacy and was conceived using the gametes of the intended father, the child’s right to respect fo r his or her private life required that domestic law provide a possibility of recognition of a legal parent-child relationship with the intended father and with the intended mother, whether or not the latter was the child’s genetic mother. Furthermore, the recognition of a legal relationship between the child and the intended father who was also the biological father, and between the child and the intended mother where the latter was not the genetic mother, could properly be established by means other than registration of the details of the child’s foreign birth certificate.

The Court saw no reason to hold otherwise in the present case with regard to the legal relationship with the intended mother, who was also the genetic mother. Hence, the mere fact that t he intended mother was the genetic mother did not render the interference with the child’s rights disproportionate, in so far as the legal mother-child relationship could actually be established by another means.

It was of little relevance in the present c ase that French law as it stood created a difference in treatment, with regard to the establishment of a legal parent-child relationship, between an intended father who was the biological father and an intended mother who was the genetic mother. The presen t application concerned only the child’s rights under the Convention and not those of the intended parents. The decisive factor was that the refusal of the request for entry in the register did not preclude the establishment of a legal mother-child relatio nship. Even though, as the child’s genetic parent, the first applicant had understandable reservations about having recourse to adoption, the Court again emphasised that the present application concerned only the child’s rights.

As the Court had pointed ou t in its advisory opinion, what was required in terms of the child’s private life was an effective and sufficiently speedy mechanism enabling the missing legal parent-child relationship to be established. As far as the recognition of the legal relationship between the child and the intended mother was concerned, adoption produced similar effects to registration of the foreign birth details. The Court considered that these criteria applied not only where the child had been conceived using the gametes of the intended father and a third-party donor, and thus had no genetic link to the intended mother (as in the context of the advisory opinion), but also in cases such as the present one where the child had been conceived using the gametes of the intended father and those of the intended mother.

As the applicant parents were a married couple and the Ukrainian birth certificate made no mention of the woman who had given birth to the child, it was open to the first applicant to make an application to the courts for full adoption of her spouse’s child. In July 2017 the Minister of Justice had issued a dispatch requesting the principal public prosecutor concerned to grant such an application. According to the Government, the great majority of applications of this type seeking to adopt the spouse’s child were granted.

It was true that the advisory opinion had specified that the requisite mechanism should exist at the latest by the time the relationship between the child and the intended mother had become a practical real ity. The possibility of having recourse to adoption had not been established with certainty until the delivery of two judgments of the Court of Cassation in July 2017, when the child had been almost five years of age, and hence in all likelihood quite some time after the relationship between the child and her intended mother had become a practical reality.

Nevertheless, this change in the law had pre-dated the final domestic decision in the present case and the applicants had been directly informed of this possibility in December 2017 by means of the judgment in their case. As the average length of a full adoption procedure was 4.1 months, according to the Government (the applicants did not substantiate their claim to the contrary), if the adoption procedure had been started after the last judgment given the issue of the legal mother-child relationship could most likely have been settled before the child reached the age of six, and at around the time when the applicants had applied to the Court. Given the lik elihood of a speedy decision, the Court did not consider that requiring the parents to initiate an adoption procedure imposed an excessive burden on the child.

Accordingly, the respondent State had not overstepped its margin of appreciation.

Conclusion : no violation (unanimously).

Article 14 taken in conjunction with Article 8: In their application, the applicants had complained of discriminatory interference with the child’s private life on the grounds of “birth”.

In their further observations of February 2020 they also complained of a difference in treatment between the biological mother and the biological father, in so far as the authorities had raised no objection to the recording in the register of the legal father-child relationship established abroad.

(i) Admissibility – The Court took note of this additional comparison between the intended father and mother, and inferred from it that the applicants wished to lodge a complaint of discrimination regarding the first applicant. This was a separate complai nt from those made in the original application, which had concerned only the rights of the child.

This complaint was based on a fact – the circumstance that the first applicant was the child’s genetic mother – which the applicants had omitted to mention in their application and which they had disclosed to the Court only following a request from the President of the Chamber in September 2019. The documents on file also showed that the domestic authorities and courts had not been informed either. In any event , this fresh complaint had been submitted outside the six-month time-limit.

(ii) Merits – Hence, the only admissible aspect of the applicants’ complaint was the difference in treatment, with regard to the means of recognition of the legal relationship with the genetic mother, between French children born abroad through surrogacy and other French children born outside the country.

Even assuming that the two categories of children thus identified by the applicants could be said to be in an analogous or releva ntly similar position with regard to the legal mother-child relationship, the fact was that the difference in treatment between them did not render it “impossible” to establish a legal parent-child relationship but simply entailed a requirement to have rec ourse to adoption for that purpose.

As the Court had just found, in the present case the adoption of the spouse’s child constituted an effective mechanism to that end.

The Court also noted the intention underlying the law as it currently stood, which accor ding to the Government was designed to ensure that the courts ascertained in each case that the establishment of a legal parent-child relationship with the intended mother was indeed in the child’s best interests, so as to limit the risks involved in the u se of surrogacy arrangements by nationals of a country where such arrangements were not permitted.

The Court – whose findings were based solely on the comparators referred to by the applicants – therefore accepted that there had been an objective and reaso nable justification for the difference in treatment of which they complained.

Conclusion : no violation (unanimously).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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